February 2001 - Labor and the Law

Ready - Aim - Fire! Terminating the Injured Employee

By Mark Lies

Editor’s Note – Mark Lies, II, is a partner in the Chicago, IL, law firm of Seyfarth, Shaw, Fairweather and Geraldson, who specializes in labor and employment law as well as occupational safety and health. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.

Unfortunately, from time to time, employees sustain injuries, either occupational or non-occupational, which involve prolonged absences from work. Frequently, a number of these employees have significant difficulty in recovering to be able to return to their former jobs in a timely fashion. As a result, employers must consider how to terminate the relationship without violating federal or state law. This article will discuss the relative rights of the employees and employer and how such termination can be done in a legally compliant manner.

Employees Terminable at Will
In general, in most states any employee is terminable at the will of the employer, that is, the employee can be terminated for any reason unless such reason is prohibited by law, public policy, or a contract right. For example, an employer cannot terminate an employee because:
• The employee has filed a worker’s compensation claim;
• Has a health condition that constitutes a “disability;”
• Has taken a qualified “leave” of absence for a serious health condition; or
• Has rights under a labor agreement or employee handbook.

While there is no general answer to the many individual scenarios that may arise, in order to avoid liability, the employer should consider the following recommendations.

Avoiding Worker’s Compensation Retaliation
Most states prohibit employers from terminating an employee because he/she has sustained a work related injury. However, there is generally no prohibition on terminating an employee for excess absenteeism. Thus, the employer should be prepared to demonstrate, with competent medical evidence, that the employee who has been absent from work because of any injury is or is not capable of returning to work. If the employee cannot return to work because he/she has significant continuing health problems with no reasonable prospect of improvement, the employer can terminate the relationship (unless there may be some additional duty under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), discussed below) when the employee fails to return to work after an extended absence.

The other, and more frequent, scenario involves a dispute between the employer’s physician and the employee’s physician about whether the employee is capable of returning to work. The employer contends that the employee is capable of working at the former job or a light duty position (and wants to stop paying temporary total disability benefits), while the employee’s personal, treating physician continues to release the employee from work and the employee draws benefits. In order to avoid potential litigation for retaliatory discharge, the employer should:

• Have the employee examined by a competent physician concerning the employee’s ability to perform the former job or light duty (and be sure to provide the physician with an accurate job description and, better yet, a videotape of the job);

• When the physician’s report is received indicating that the employee can return to work, send a letter to the employee (or his/her attorney) advising the employee that the employer’s physician has indicated that the employee can return to work and that the employee will be expected to return to work by a certain date and, if the employee fails to return to work, the employer will consider the employee to be on an unexcused absence;

• If the employee fails to return to work, the employer should cut off temporary total disability benefits and again inform the employee that the benefits have been stopped and that the employee’s continued failure to return to work will constitute unexcused absence;

• Finally, assuming that the employee fails and refuses to return to work, the employer should send a final letter to the employee advising that the employee will be terminated for unexcused absenteeism on a certain date.

Obviously, this progressive approach may seem time-consuming but it will ensure that the employer can demonstrate that its motivation for termination was not the filing of a worker’s compensation claim, but the employee’s excessive absenteeism in failing and refusing to return to available work. The employer’s action will also reduce potential liability for punitive damages if the employer’s position is challenged because the decision was made in good faith in reliance upon competent medical evidence.

Americans with Disabilities Act
Under the ADA, an injured employee who has developed a “disability” recognized under the law (a significant impairment of a major life activity, e.g., working, lifting, walking, etc.) may have certain limited protections against termination. The employer should make a fact-specific determination whether the available evidence indicates that the injured employee may have a physical or mental impairment that rises to the level of a protected “disability.” If the employee’s impairment is temporary or can be controlled or substantially eliminated with the use of medication or corrective devices (e.g., glasses), the impairment is likely not to be a disability and the termination for absenteeism should not be a violation of the ADA.

If it appears that the impairment is significant, the employer can and should require the employee to submit to a medical examination to determine fitness to return to work. If such examination reveals that there are physical impairments that are significant and likely to be chronic, the employer should engage in an “interactive” (i.e., communication dialogue) with the employee about the employee’s return to work.

If the employee indicates a willingness to return to work at the prior job (or the same job with minor modifications as an “accommodation”), within a reasonable period of time, the employer should consider granting leave to allow such opportunity. If, however, the employee cannot or will not indicate when he/she will return, the employer should begin a progressive series of actions, including letters, directing the employee to return to work or he/she will be subject to termination for unexcused absence.

Assuming that the employee indicates that he/she cannot return to the prior position, and the employer believe that the employee has a “disability,” the employer may have one more step to consider – that of an assignment to a vacant position if the employer currently has such a position available, within the employee’s qualifications and physical limitations, as an “accommodation.” If the employee refuses to accept such “accommodation” the employer’s duty under the ADA is satisfied and the employee’s continued absence is unexcused.

Incidentally, if the employee accepts the accommodation position, the employer can set the compensation and other job benefits consistent with the economic value of the new position, even if it results in a reduction of compensation or other benefits to the employee.

Family and Medical Leave Act
Under the FMLA, an employer who has more than 50 employees at its location is required to provide up to 12 weeks of unpaid leave of absence from work in any 12 month period to any employee who has worked for the employer for at least 12 months (which need not be consecutive) and at least 1,250 hours during the 12 months prior to the requested leave and who has sustained a “serious health condition.” Thus, before any employer considers terminating an employee who has sustained a serious injury and absence from work for treatment, the employer must confirm that it has complied with the FMLA’s technical requirements to notify the employee that he/she has commenced the leave initially, has properly counted the days utilized on the leave, and that the available leave has been exhausted. Assuming that these requirements have been met and the leave period has been exhausted, there is no impediment under the FMLA to termination.

Labor Contract or Handbook Rights
Finally, an injured employee may have certain rights under a labor agreement or employee handbook that limit the employer’s ability to terminate the employee until the conditions under the agreement or handbook have been met. For example, the employee may have a right to be absent from work for certain periods, typically up to one year under some labor agreements, or a right to a minimum period of notice and an opportunity to return to work under a handbook, before he/she can be terminated. Thus, the employer should review the tab or agreement and handbook to assure that such employee rights are honored.

Conclusion
As discussed above, the employer faces several potential hurdles to ensure that the termination does not violate the employee’s rights under state or federal law. Careful analysis of these foregoing rights will ensure that the termination can be sustained as non-discriminatory.